PHOENIX — Alleging Maricopa County lied, Kari Lake and Mark Finchem are making a last-ditch plea to the U.S. Supreme Court to consider their claim that voting machines are so inherently inaccurate that they should not be used in elections.
But the justices won’t be hearing the latest they have to say about that.
There is evidence that Maricopa County provided “false material evidence’’ to lower courts about whether the legally required “logic and accuracy’’ tests were run on machines used in the 2022 election, attorney Lawrence Joseph told the justices in a supplemental filing to the high court. He also said the county “used altered, and hence, uncertified software.’’
Those allegations are not new. They were presented when Lake and Finchem asked the Supreme Court earlier this year to give them a do-over of their claims about the accuracy of the vote-tallying machines.
What is new, said Joseph, is that they chose not to file a formal response to the petition to the high court.
He contends that in waiving its response, the county is not just ignoring the new allegations but may be committing “fraud on the courts’’ if they knew the evidence used at trial was false. And if the county just learned of it from the filings of Lake and Finchem, he said, they are violating ethical rules by failing to respond.
And Joseph said that, by itself, is enough for the high court to summarily grant their petition and send the case back for a new trial.
The petition, however, was tossed out.
There was no explanation. But Joseph told Capitol Media Services he believes the court clerk concluded that the waiver by the county of any response did not allow him to file additional claims.
That doesn’t mean the justices will rule against Lake and Finchem and their underlying bid for a new trial. In fact, they have agreed to review their claims later this month.
But their decision not to accept what Joseph just filed means they won’t consider his latest claim that the county lied. Instead, the justices will decide whether Lake and Finchem get a new trial based solely on the question of whether they got a fair trial the first time around based on the evidence they provided at that time.
That could be difficult to prove given the extensive ruling by U.S. District Court Judge John Tuchi. He called their allegations of issues with voting machines little more than speculation on their part, backed only by “vague’’ allegations about electronic voting systems generally.
In that 2022 lawsuit, the pair claimed that the machines that tally the paper ballots are unreliable because they are subject to hacking.
They originally sought to have the ballots for the 2022 race in which they were running — Lake for governor and Finchem for secretary of state — counted by hand, calling it “the most effective and presently the only secure election method.’’
Tuchi refused, saying their claim was a “long chain of hypothetical contingencies’’ — one that has never occurred in Arizona — that would have to take place for any harm to occur.
The 9th Circuit Court of Appeals upheld the ruling, saying the pair never presented any actual evidence that machines used in Arizona had ever been hacked.
Now Lake and Finchem, who are running for different offices this year, want a do-over of that trial, based on that alleged “newly discovered evidence’’ about the testing of the machines and the software.
Deputy County Attorney Tom Liddy said there’s nothing to support the latest claims that the pair hopes to use to get the Supreme Court to give them a new trial.
“Of course, their claims are not true,’’ he told Capitol Media Services. Now, still with no actual proof of problems with the vote-tallying machine, Liddy said, they are hoping to sway the justices with those claims of new evidence that they didn’t have when the case went to trial.
“They have no new evidence, just more baseless claims from witnesses who have no understanding of the election processes, equipment or the data they review,’’ he said. And Liddy said the “witnesses’’ that they are relying on have no credibility “based on their respective track records.’’
And there’s an even bigger hurdle for Lake and Finchem to overcome.
Liddy pointed out that the role of the Supreme Court is to review the record of the trial, not to conduct a new trial or reweigh the evidence.
“A party is not permitted to introduce new evidence when petition for certiorari,’’ he said, the formal term for an order by an appellate court to conduct such a review. Liddy said that is why the county did not bother to respond to the request by Lake and Finchem for Supreme Court review because was based not on claims of legal error but only on allegations of newly discovered evidence.
